The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-01-28


.anish three departments, coordinate, and indie |
penaent, that they might check and balance one |
1t has given according to this opinion to one
OF tnem alone the right 80 prescribe rules for the coy
eminent of the other. The S,orst;t,t;one IN |
TINS hypothesis is thing of wax in the hands
f o. .ne judiciary which twist and shape any
Constitution is very different from what YOU quote.
II IS that each department is truly independent Of the
what IS the meaning of the Constitution in the cases
submitted to its action; and especially where it is to
act ultimately and without appeal"
ne then gives instances where he refused to
permit the judiciary and the Congress to inter
iere with his acts as President, among them
this: $500
In the case of Morhery and Madison, the federal
IIuges declared that commissions signed and sealed by
lue 1res,dent were. valid although delivered.
deemed delivery essential to complete deed which
r ong as remains in the hands of the party
yer no deed it is in posse only but not in esse and
withheld delivery of the commissions.
90 AGAIN. In his letter to Mr.. Jarvis dated Sept
20, lozo, Writings vol. 7, p. 177,) in discussing
THIS question he says:
Inc Constitution has erected such single tribunal
showing that to whatever hands confded with the
corruptions of time and party its members would be-
come despots. 1t mas more wisely made all the de-
| selves.
Now, as a growth of this feeling, originating
largely In the exciting events of that stirring
| time, there was engrafted into the constitu-
tons adopted after the rendition of that de-
clslon In 1903 articles similar to Article of
our state Constitution. On somewhat hasty
examination l find moro than two-thirds of
| the States of this Union have articles similar to
Article 3 of our Constitution. In 1916, when
the discussion Of this question was fresh in the
minds OF the people of this State, the first
constitution OF our State was adopted: Article
y which is similar in effect to Article of our
| present Constitution, was. after thorough dis
| cussion OF this question, and in full view of all
tne results incident to it, put into the Constltu
ZION. 1t was there for a purpose. and that was
| to prevent one department of government from
| encroaching upon the rights and privileges of
another, and to render each department indie
| pendent of the other.
So it is said, in the "Opinion of the Justices"
! 56 New HI m oshire 574:
There is no principle more fundamental more thor
oughly interviewer in the fabric of republican
stutlons and form of government and probably none
more familiar to the great of intelligent citizens
of the State than that the three branches of govern
ment-the legislative the executive, the judcial-are
coordinate and indepen dent. Neither can interfere
with the duties functions of either of the others
without striking blow at the foundation upon which
rests all security as well for private rights the
public welfare.
In that case the question was whether or not
the executive could control the legislative in de-
| termining who had been elected members of the
| General Assembly of the State of New Hamp-
| shire. The Supreme Court held it was beyond
the power of the executive, beyond the power of
the Judiciary, and that it rested solely with the
| legislative department.
The same principle is laid down in Railroad
Company vs.. Geger Oath Indiana, 1917, as well
| as In smith vs. Meyers recently decided by this
court where it is said:
Many assert that courts cannot control by in
Junction or by other writ the exercise of pure
y legislative executive power The principle which
underes the decisions this point is we'll stated by
our court in Wright VS. Defrees S Ind 29S
when it was said THE powers of the three depart
to the duties assigned to each they absolute
ly independent of each other" In other cases this
principle has been asserted and enforced. Gregory
vs. State. 81 hd 3S4 Burler State 81 Ind, 373.1
ThiS rule has noa vi c1v n;p cd b..
this court, In preventing the other departments
from encroaching upon the judiciary, and /
no reason why this court should not be equally
careful not TO trespass on the other departments.
STATE COURTS HAVE NO JURISDICTION.
This brings me to the discussion of the last
proposition, and that is that this is not the forum
in which to try the question of title to this Of
flee, because of Section 6, Article 5, of our Con-
stitution, which reads as follows:
Contested elections for Governor or Lieutenant
governor shall be determined by the General Assem-
bly, OF the State, in such manner as shall be pre-
scribed by law.
The manner has been prescribed by law in
Sections 4743 and 4746 Of the Revised Statutes
of 1881 Now. it is argued by Mr.. Brown that
this is not contested election case, and he
CUES that the question as to whether or not there
was valid election cannot be considered by the
| Genera. Assembly, and that that ls a power
which is vested in the courts alone. Webster
defines the word contest" as follows: ITO cali
in question: to contend against; to controvert;
to dispute" And the word Contested" he de-
fines Disputed litgated." The trainers of
the Constitution understood the weight of Ian
| guage. They were the most eminent men in the
State at that time, and celebrated for their
learning. They used the word contested"
They did not narrow it by the use of qualifying
terms, but they let the word stand there with all
the meaning which is ordinarily conveyed by the
use Of that word. Now, then, if to dispute, to
contend against to call in question, to controvert
to- litigate, does not include the question as to
whether not there valid election, then
have no adequate idea Of the IN Gaming of the word
contested. You dispute the election. You deny it.
You controvert it. Does not that include. first
the question to whether or rot there was a
valid election, and, second, whether not the
person who claims that he was elected at that
time was elected under the forms of laws 1t is
argued, again, that this remedy provided by the
| Constitution is merely cumulative and this Sec
tion of tine Constitution is cited:
The JUDICIAL power of the State shall be vested in
Supreme Court in Circuit Courts. and IN such other
! courts as the General Assembly may establish.
Mr.. Brown contends that this confers upon the
courts of the State the same jurisdiction to try
; these questions the General Assembly has
! under tho other clause in the Constitution. In
Chandler VS.. Nash, Michigan. 400, discussing a
clause of the Constitution similar to ours, the
. court say:
|, This beyond all question vests the whole judicial
power of the State in the courts and Offices named in
this section unless be further provision in
the same Constitution comforting upon some other
court officer part of said judicial power, or au
thorzing the Legislature confer it. In the latter
case it can only be vested conferred by such fur
Their provision expressly by necessary implication
which would have the effect to take tha out Of
the general provision above quoted.
Q Granting that, if this last-quoted section Of
| our Constitution stood alone, tie whole judicial
9 power would be vested in the courts of this
. State, yet we are to remember that the Consti
j tuition must be construed and considered as q
: | whole and that there is in that Constitution a
. | reservation to tho extent that this question OF
. the trial of the title the Office Of Lieutenant
governor shall remain in the General Assembly
onfin nf fha
3 | must be read together. They must both be al
lowed to stand; and the effect of the provision
in regard to a contested election of Lieutenant
! governor takes that case out of the provision OF